ACSO and Hudgell Solicitors's John Cuss explores the Supreme Court judgment in Paul v. Royal Wolverhampton NHS Trust [2024].
The question of damages for secondary victims in the medical negligence arena has never been authoritatively decided until now. The way the Supreme Court approached this issue in the conjoined appeals was to distinguish ‘accident’ scenarios from disease or illness in medical negligence cases. Therefore, Alcock remained good law but only applied to ‘accident’ cases. The outcome is that the three conjoined appeals were dismissed and there will rarely now be circumstances to pursue a secondary victim claim in a medical negligence setting.
The judgment for the medical negligence arena:
The key passages from the Supreme Court judgment are:
“We are not able to accept that the responsibilities of a medical practitioner and the purposes for which care is provided extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or manifestation of disease/injury in their relative. This would go beyond what is reasonably regarded is the nature and scope of their role.” (Paragraph 138)
As Alcock is so well established… “a line must be drawn somewhere to keep the liability of negligent actors for such secondary harm within reasonable bounds.” (Paragraph 141)
“There is a rough and ready logic in limiting recovery by secondary victims to individuals who were present at the scene, witnessed the accident and have a close tie of love and affection to the primary victim.” (Paragraph 141)
In the medical setting… “There does not exist the proximity in the relationship between the parties (secondary victims) necessary to give rise to a duty of care.” (Paragraph 142)
Would there possibly be any exceptions to the above principles?
It was stressed that in relation to infectious diseases, doctors are considered to have a responsibility to protect public health wider than their duty to protect the health of their patient. (Paragraphs 134 and 135)
For ‘medical accidents,’ as is stated in the dissenting judgment of Lord Burrows, the judgment leaves open the question of whether there can be liability where there has been a medical accident i.e. “medical negligence comprising/causing an event external to the primary victim”. An example is given in paragraph 123 of the judgment of a doctor injecting a patient with a wrong drug, inducing such a severe adverse reaction witnessed by a close relative. The three conjoined appeals were not ‘accident’ scenarios warranting further consideration, and the Supreme Court therefore decided such arguments would be best left for relevant circumstances and future cases.
What about secondary victim claims outside of medical negligence?
The Supreme Court opined that the case law regarding secondary victim claims had taken a few wrong turns over the years which they could now correct:
In particular:
- Paragraph 73 – Alcock does NOT include a requirement that the claimant’s psychiatric injury must have been caused by a ‘sudden shock to the nervous system’. The nature of post-traumatic stress disorder (PTSD) illustrates very clearly the need to abandon the requirements of nervous shock in these cases to concentrate on the requirement that the claimant has suffered from a recognised psychiatric illness.
- Paragraph 74 – with regards to causation, it is sufficient if a claimant who was present at the scene of the accident or in its immediate aftermath in which a loved one was killed, injured or imperilled to show that there was a causal connection between witnessing that event and the injury suffered. It is not necessary to demonstrate the neurological/psychological mechanism by which injury was induced.
- Paragraph 75 – there is no separate requirement to prove that the event witnessed was ‘horrifying’. It is of course still necessary to show that it was reasonably foreseeable that the defendant’s negligence might cause injury.
- Paragraph 81 – the judicial comments here suggest that the majority judgment felt that ‘the aftermath of an accident’ terminology had been extended too far in previous judgments.
- Paragraph 94 – the Supreme Court could see no good reason why the gap in time between the negligence and the horrific event should affect the defendant’s negligence. As readers will be aware, typically in accident cases, the accident and the defendant’s negligence will happen at much the same time. However, the right to recover damages is not impacted by the length of time between the negligent act/omission and the accident. An example is given in the judgment of a mother who witnesses masonry fall on her child’s head and suffers psychiatric injury where the negligent masonry/building work was months or even years before the accident.
- Paragraph 103 – there was a dismissal of the principle of ‘first manifestation of damage to the primary victim’ as it was held illogical to make the liability of the defendant depend on whether the event witnessed by the claimant was or was not the first manifestation of damage to the primary victim.
- Paragraph 104 – It was held that Novo was correctly decided and for a claim to succeed a claimant must be present at the scene of an accident or its immediate aftermath and have witnessed the accident and have a close tie of love and affection to the primary victim. (Note also that paragraph 24 of the judgment defined ‘accident’ in this context as “an unexpected or unintended event which causes injury (or a risk of injury) to a victim by violent external means”).
- Finally, in paragraph 105, the Supreme Court distinguished between the accident and the consequent injury – “an accident is an external event which causes, or has the potential to cause, injury, it is not the injury, if there is one caused by the event.”
“Thus far and no further”
There was one dissenting judgment, that of Lord Burrows, whose lengthy judgment referred to how he believed it was inappropriate for the court to adopt the “thus far and no further” approach to developing the law in this area of secondary victims. Lord Burrows, whilst mindful of policy concerns and the risk of opening the floodgates to litigation, strongly believed that the court was making an unwarranted back-step to insist that there must be an accident.
It is hoped and expected that this judgment will provide greater clarity of the law surrounding secondary victim claims.
John Cuss is ACSO’s Senior Legal Policy Adviser and Head of Corporate Services & Strategic Partnerships at Hudgell Solicitors